Before
the court is Defendant Dave Grant Hay Inc.'s Motion to
Dismiss pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure. (Dkt. No. 31.) The court held a hearing on
the motion on January 9, 2018. (Dkt. No. 40.) At the hearing,
Dave Grant Hay, Inc. was represented by Aaron Johnstun and
Plaintiff was represented by April Hollingsworth. At the
conclusion of the hearing, the court took the motion under
advisement. Now being fully informed, the court issues this
Memorandum Decision and Order.

Factual
Background

This
case involves allegations of disability discrimination under
the Americans with Disabilities Act, as amended
(“ADA”). Plaintiff was diagnosed with rheumatoid
arthritis in approximately 1997. (First Amended Complaint at
¶ 9.) Plaintiff began working as a dump truck driver in
approximately April 2006. (Compl. at ¶ 14.) Plaintiff
has alleged that throughout his employment as a dump truck
driver, his employer treated him with hostility and failed to
accommodate his rheumatoid arthritis. (Compl. at ¶¶
16-42.) Plaintiff resigned from his position on June 9, 2014.
(Compl. at ¶ 42.)

In his
First Amended Complaint, Plaintiff referred to Defendants
Grant Trucking, LLC, Dave Grant Hay, Inc.
(“DGHI”), and Grant Transportation Services,
Inc.[1]
collectively as his employer. (Compl. at ¶¶ 2-3.)
Plaintiff provided little support in the Complaint for this
assertion, alleging only that Defendants “share the
same principals, office location, and employees[.]”
(Compl. at ¶ 2.)

Defendant
Grant Trucking, LLC is a Utah limited liability company.
(Compl. at ¶ 2.) DGHI is a Utah corporation and is the
sole member of Grant Trucking, LLC. (Id.) The two
share the same principal place of business, and their
registered agents share the same address. (Id.) All
of this information is publicly available and can be found by
searching the website operated by the Utah Division of
Corporations and Commercial Code.

Procedural
History

On or
about November 12, 2014, Plaintiff sent correspondence to the
United States Department of Justice (“DOJ”)
indicating that he believed his former employer, Grant
Trucking, was in violation of the Americans with Disabilities
Act. (Compl. at ¶ 6, Exh. 1.) On or about December 18,
2014, the DOJ forwarded Plaintiff's correspondence to the
United States Equal Employment Opportunity Commission
(“EEOC”), copying Plaintiff, and informing the
EEOC that “complainant alleges actions that may
constitute discrimination on the basis of disability by the
(sic) Grant Trucking.”[2] (Id.)

Plaintiff
obtained his current counsel, Ms. Hollingsworth, in January
2015, shortly after the DOJ informed the EEOC of
Plaintiff's complaint. Plaintiff was represented by Ms.
Hollingsworth throughout the EEOC proceedings.[3] On July 3, 2015,
the EEOC requested that Plaintiff fill out a
“new” Charge of Discrimination. (Compl. at ¶
7.) In that Charge, Plaintiff named only one entity:
“Grant Trucking, ” as his employer, and stated:
“I was initially hired by the above noted Respondent on
or about 7-17-2006 as a Truck Driver.” (Dkt. No. 31-1,
Exh. B.) Plaintiff understood the name of his employer to be
Grant Trucking because “that was the name on [his] pay
stubs and the name printed on the side of the dump truck [he]
drove.” (Dkt. No. 35-5.) Plaintiff did not refer to any
other entity either in the employer section of the charge or
the particulars of his complaint. (Id.)

Grant
Trucking, LLC filed a written response to Plaintiff's
Charge of Discrimination on October 1, 2015. (Dkt. No. 35-6.)
Grant Trucking, LLC's first legal argument in that
response was that it was not a covered entity during
Plaintiff's employment because it never had fifteen or
more employees. (Id. at 5.) With fewer than fifteen
employees, Grant Trucking, LLC would not be subject to the
ADA. No other respondent made any filing or appearance during
the EEOC investigation process.

Plaintiff
never attempted to amend his Charge to add any new
respondents, nor did he indicate to Grant Trucking, LLC or
the EEOC that he intended to do so. On June 14, 2016, the
EEOC dismissed Plaintiff's Charge, stating that it was
“unable to conclude that the information obtained
establishes violations of the statutes, ” and provided
Plaintiff with a Notice of Right to Sue. (Dkt. No. 29-2.)

On
September 2, 2016, Plaintiff filed this lawsuit, naming Grant
Trucking, LLC and Grant Transportation Services, Inc. as
Defendants. (Dkt. No. 2.) Defendants filed a Motion to
Dismiss the Complaint on various grounds, including that
Plaintiff's sole employer, Grant Trucking, LLC, did not
meet the 15-employee threshold requirement to subject it to
liability under the ADA. (Dkt. No. 5.) Plaintiff then filed a
First Amended Complaint on August 17, 2017, adding DGHI as a
third Defendant. (Dkt. No. 29.) The only claim asserted by
Plaintiff is employment discrimination in violation of the
ADA. (Id.) DGHI moves for dismissal pursuant to Rule
12(b)(1), arguing that Plaintiff failed to exhaust his
administrative remedies with respect to it. (Dkt. No. 31.)

Standard

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Rule
12(b)(1) motions to dismiss generally take one of two forms:
1) &ldquo;a facial attack on the complaint&#39;s allegations
as to subject matter jurisdiction&rdquo; or 2) a challenge to
&ldquo;the facts upon which subject matter jurisdiction
depends.&rdquo; Holt v. United States, 46 F.3d 1000,
1002-03 (10th Cir. 1995). In the first instance, the
court&#39;s analysis is limited to the allegations in the
complaint; in the second instance, &ldquo;a district court
may not presume the truthfulness of the complaint&#39;s
factual allegations&rdquo; but instead has &ldquo;wide
discretion to allow affidavits, other documents, and a
limited evidentiary hearing to resolve disputed
jurisdictional facts under Rule 12(b)(1).&rdquo; Id.
at 1003. In either instance, if the motion is not
&ldquo;intertwined with the merits of the case, &rdquo; the
court is not required to convert a Rule 12(b)(1) motion to
dismiss into a Rule 12(b)(6) motion or a Rule 56 summary
judgment motion. Id. Here, the jurisdictional
question is not intertwined with the merits of the case ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.